Norfolk & Western Railway Co. v. Keeling

PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Carrico, 1 S.J.

NORFOLK AND WESTERN RAILWAY COMPANY

v. Record No. 020834 OPINION BY JUSTICE ELIZABETH B. LACY
February 28, 2003
RAYMOND P. KEELING

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge

In this case brought under the Federal Employers'

Liability Act, 45 U.S.C. §§ 51-60 (FELA), Norfolk and Western

Railway Company (N&W) appeals a judgment in favor of its

employee, Raymond P. Keeling, Jr., asserting that Keeling

failed to present evidence that N&W was negligent and that

Keeling's injury was foreseeable. N&W also argues that the

trial court improperly excluded certain expert testimony.

Based on our review of the record, we conclude that the issues

of negligence and foreseeability were properly submitted to

the jury and that the trial court did not abuse its discretion

in excluding the testimony of N&W's expert.

FACTS

Keeling was employed by N&W as an electrician. In his

position, Keeling had to wear a respirator at times and, under

federal regulations, was required to take pulmonary function

tests (PFTs).

1
Chief Justice Carrico presided and participated in the
hearing and decision of this case prior to the effective date
 N&W contracted with T.K. Group, Inc., and Quality

Services, Inc., to administer PFTs to N&W's employees. N&W's

internal protocol provided that prior to administering a PFT

the blood pressure of employee will be monitored
and determined to be within the acceptable range
(lower than 200/115). If above this level, testing
will not be performed and the supervisor and
medical doctor will be advised.

Before administering a PFT to Keeling in August 1994, N&W's

agent, a technician employed through T.K. Group, Inc., and

Quality Services, Inc., measured Keeling's blood pressure.

That measurement showed that Keeling's blood pressure was

greater than 200/110. 2 After waiting five or ten minutes, the

technician again took Keeling's blood pressure, which then

measured 158/102. Based on this reading, the technician

proceeded to administer the test to Keeling.

The test required Keeling to breathe through a device

that measures the airflow generated by the patient's lungs.

The patient is instructed to inhale as deeply as possible and

then exhale that air as quickly as possible. The technician

administering the test felt Keeling's first test was

insufficient and told Keeling to "blow hard" into the device

again. When he repeated the test, Keeling started sweating

of his retirement on January 31, 2003.
2
The record does not indicate the exact measured reading
but established that Keeling's blood pressure was greater than
200/110.

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and experiencing chest pain and dizziness. At that point, the

technician stopped further testing. After checking with his

superior, Keeling was driven home by a co-worker.

Keeling's symptoms continued at home, and his wife took

him to a hospital emergency room. The emergency room

physician determined that Keeling had a hole in his ear and

referred him to Dr. Kurt Chen, an otolaryngologist. Dr. Chen

performed surgery on Keeling's ear two days later.

Keeling's condition improved following his surgery and

rehabilitation, but in 1995, he lost his balance and fell.

Dr. Chen referred Keeling to Dr. Robert I. Kohut, another

otolaryngologist, who diagnosed Keeling's condition as

"recurrent perilymphatic fistula" and determined that Keeling

required another surgery on his eardrum. 3 Keeling experienced

some improvement after this second surgery but was never

released by a physician to return to his former employment.

Keeling filed an action against N&W under FELA, alleging

that N&W violated FELA because it negligently failed to

provide a safe workplace by, inter alia, not properly

determining whether he was physically fit to undergo or

3
A perilymphatic fistula is an opening between the inner
ear and middle ear allowing perilymph fluid to permeate the
middle ear from the inner ear.

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continue pulmonary function testing. 4 This negligence, Keeling

claimed, resulted in a perilymphatic fistula when he blew into

the testing mechanism. Following a five day trial, the jury

returned a verdict in Keeling's favor for $350,000. N&W

appeals from the judgment entered on the jury verdict.

DISCUSSION

1. Negligence and Foreseeability

We awarded N&W an appeal on three assignments of error.

In its first two assignments, N&W asserts it was entitled to a

judgment in its favor as a matter of law because Keeling

presented no evidence of negligence in the administration of

the PFT and no evidence that Keeling's injury was foreseeable.

The legal principles applicable to these two assignments

of error are well settled. Whether negligence has been

established in a FELA claim is a matter of federal law.

Norfolk S. Ry. v. Trimiew, 253 Va. 22, 24, 480 S.E.2d 104, 106

(1997). Under FELA, the railroad has a nondelegable duty to

exercise reasonable care in providing a safe work place for

its employees. Id. at 25, 480 S.E.2d at 106. The employer

breaches this duty if its negligence causes, even in the

slightest way, an injury to its employee. Reasonable

foreseeability of harm is an essential element of negligence

4
Keeling also named T.K. Group, Inc. and Quality Services
Inc. as defendants. Orders non-suiting T.K. Group and

4
under FELA. Id. at 24, 480 S.E.2d at 106. Both

foreseeability and negligence must be shown by more than a

scintilla of evidence, and these issues are normally issues

for the jury. Id. at 27, 480 S.E.2d at 108.

The standard of review applicable to the first two

assignments of error is also well established. The evidence

and all inferences fairly made from that evidence must be

considered in the light most favorable to Keeling. Austin v.

Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285, 287 (1997).

Further, this Court will not set aside the trial court's

judgment unless it is plainly wrong or without evidence to

support it. Code § 8.01-680.

N&W asserts that the record "simply does not support"

Keeling's theory that the failure to excuse him from PFT

testing when he received the initial higher blood pressure

reading was negligent. N&W argues that Keeling was given the

PFT only after his blood pressure reading was 158/102 and that

there was no evidence to support the conclusion that

administering a PFT following such a blood pressure reading

was negligent. "The heart of" Keeling's allegation of

negligence, N&W argues, is that the technician, N&W's agent,

failed to follow N&W's internal protocol.

dismissing Quality Services were entered prior to trial.

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 The record does not support N&W's position. Rather, the

record contains expert testimony that administering the PFT

test following his initial blood pressure reading exposed

Keeling to a greater risk of injury. Dr. Kirk E. Hippensteel,

Keeling's expert in the field of pulmonology, testified that,

in his expert medical opinion, no patient should be asked to

perform a PFT following a blood pressure reading in excess of

200/110 or 200/115. Dr. Hippensteel explained that blood

pressure is dynamic and that performing a PFT would likely

cause a patient's blood pressure to increase. Such increase

in blood pressure would decrease the autoregulation of the

cardiovascular system and autoregulation of pressure in the

brain. He opined that administering the PFT following the

initial blood pressure reading in this case created the risk

that Keeling's blood pressure, even following a rest period,

would be as high or higher than the original blood pressure

reading and that the test should not have been given.

This evidence of negligence in administering the test

after receiving the initial higher blood pressure reading is

not related to an allegation that the negligence consisted of

a violation of N&W's internal protocol. Dr. Hippensteel's

opinion is an independent determination that the initial blood

pressure level itself, regardless of the relationship of that

level to the protocol, provided the basis to conclude that the

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PFT should not have been administered, regardless of

subsequent blood pressure levels.

We conclude that the record contains more than a

scintilla of evidence that N&W was negligent when its agents

administered a stressful PFT test to an employee with a blood

pressure reading in excess of 200/110 or 200/115. See

Trimiew, 253 Va. at 27-28, 480 S.E.2d at 108.

We also agree with the trial court that sufficient

evidence was produced to support a jury finding that injury

was foreseeable as a result of administering the PFT under an

elevated blood pressure level. An employee raising a FELA

claim does not have to show that the employer's negligence

would inevitably cause injury, had resulted in past injury, or

would cause a specific kind of injury. See Gallick v.

Baltimore & Ohio R.R., 372 U.S. 108, 120-21 (1963). N&W

produced testimony that the blood pressure screening was done

prior to administration of PFTs for general health purposes.

Nevertheless, under N&W's protocol, the administration of a

PFT was contingent upon an employee's blood pressure level.

Thus, the jury was entitled to conclude that N&W believed

there was a risk of harm associated with taking a PFT while

experiencing certain blood pressure levels.

Considering the evidence in a light most favorable to

Keeling, we conclude that Keeling presented more than a

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scintilla of evidence that N&W knew or should have known that

an injury was likely to occur if a PFT was given to an

employee with a blood pressure level in excess of 200/110 or

200/115. Accordingly, the trial court properly submitted the

issues of negligence and foreseeability to the jury and did

not err in refusing to set aside the jury verdict on those

issues.

2. Expert Testimony

N&W's final assignment of error relates to the testimony

of Dr. J. Wallace Grant, Ph.D. We begin by briefly reviewing

the testimony in question.

N&W offered Dr. Grant as an expert in biomechanical

engineering with a specialization in vestibular mechanics.

The trial court found that Dr. Grant was qualified to offer

opinion testimony in those areas. In his direct examination,

Dr. Grant was asked "what is it that causes one of these

fistulas to become symptomatic?" As part of the response to

this question, Dr. Grant stated that "[t]he creation of the

fistula is usually the result of an infection or something

that causes the tissue or the bone to deteriorate." Keeling

objected, asserting that the questions and answers went beyond

the area of biomechanical engineering because they addressed

the medical cause of the fistula, an area "reserved for the

medical profession."

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 Out of the presence of the jury, counsel for Keeling and

N&W presented arguments regarding the admissibility of this

testimony. Following a dialogue with the trial court as to

whether N&W planned to ask Dr. Grant questions involving

"cause," Dr. Grant was questioned further by N&W and Keeling.

This questioning was submitted by N&W as a proffer of Dr.

Grant's testimony. N&W's counsel summarized the testimony as

describing "the relationship between blood pressure and

cerebral spinal fluid as they interact in pressure within the

vestibular area . . ." which "merely explains the mechanics of

what goes about in the inner ear when there is a perilymphatic

fistula which allows the communication of pressure between an

inner ear and the middle ear."

Relying on Combs v. Norfolk and Western Railway Co., 256

Va. 490, 507 S.E.2d 355 (1998), the trial court concluded that

Dr. Grant's testimony about the relationship between arterial

blood pressure and perilymphatic fistula, was, in the court's

view, "the functional equivalent of Doctor Schneck testifying

to the relationship between various physical factors and the

rupture of a human disk [in Combs]."

Following this ruling, N&W told the trial court that it

intended to limit its questioning of Dr. Grant to "the

relationship between blood pressure and the pressure that you

see in the cerebral spinal fluid." The court proceeded to

9
examine Dr. Grant to determine whether the nature of his

testimony would be biomedical or biomechanical. Following

this exchange, the trial court again commented that the

testimony at issue was "biophysical as well as biomechanical"

and that N&W did not want to question Grant solely about

"pressures in the inner ear." The trial court concluded that,

under Combs, Grant could not "offer testimony in those areas."

In its final assignment of error, N&W complains that because

Dr. Grant's testimony did not address medical causation

issues, it was error to exclude the testimony on the basis

that Dr. Grant was not a medical doctor.

In considering questions of procedure and evidence,

including the admissibility of expert testimony, we apply

state law, Chesapeake v. Ohio Rwy. Co. v. Kelly, 241 U.S. 485,

491 (1916), and review the trial court's ruling to exclude

expert testimony for an abuse of discretion. John v. Im, 263

Va. 315, 320, 559 S.E.2d 694, 696 (2002).

In Combs, we held that only a medical doctor could give

expert testimony about the cause of a human physical injury.

256 Va. at 496, 507 S.E.2d at 358. We reiterated that rule in

Im, 263 Va. at 321, 559 S.E.2d at 697. The testimony given by

Dr. Grant in the presence of the jury – that fistulas were

generally caused by infections that caused bone or tissue to

deteriorate – clearly came within the prohibition recited in

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Combs and Im. The trial court did not abuse its discretion in

excluding this testimony.

The testimony presented out of the presence of the jury

in N&W's subsequent proffer did not include questions as to

the cause of the fistula. However, we cannot say that the

trial court abused its discretion in disallowing this

testimony based on its conclusions that N&W did not intend to

limit its questions to pressure in the inner ear and that the

proffered testimony involved opinions based on both medical

and biomechanical matters.

Furthermore, as N&W predicted at trial and Keeling argues

here, other medical doctors presented by N&W testified

"essentially, about the same issues." The testimony that N&W

argues was improperly excluded was Dr. Grant's opinion that

cerebral spinal fluid pressure is independent of arterial

blood pressure and that a straining movement could increase

both cerebral spinal fluid pressure and venous pressure but

that there was no relationship between such a straining

movement and arterial blood pressure.

Dr. Paul R. Lambert and Dr. C. Edward Rose, medical

doctors testifying on behalf of N&W, stated that there was no

relationship between arterial blood pressure and cerebral

spinal fluid pressure. These doctors also testified that a

straining effort could increase cerebral spinal fluid pressure

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and venous pressure but not arterial blood pressure. This

information was put before the jury, and, thus, Dr. Grant's

testimony as to these matters would have been cumulative.

For the above reasons, we will affirm the judgment of the

trial court.

Affirmed.

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